TR.P(C) Nos.722 & 805 OF 2021
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944
TR.P(C) NO. 805 OF 2021
IN OP 882/2021 OF FAMILY COURT, MUVATTUPUZHA
PETITIONER/S:
JERRIN JAMES
AGED 31 YEARS
AGED 31 YEARS, S/O JAMES.K.V KANNETH HOUSE,
GANDHIPURAM , MARKET ROAD, TRIPUNITHURA.P.O,
ERNAKULAM , KOCHI-682 301, REPRESENTED BY HIS POWER
OF ATTORNEY HOLDER JAMES. K.V. KANNETH HOUSE
GADHIPURAM, MARKET ROAD, TRIPUNITHURA.P.O,
ERNAKULAM,KOCHI-682 301., PIN - 682301
BY ADVS.
M.DINESH
PAUL MATHEW (PERUMPILLIL)
RESPONDENT/S:
MARIA BABU AGED 28 YEARS AGED 28 YEARS, D/O BABU . A.P. AVALAKOTTIL HOUSE, THIRUVANIYOOR.P.O, ERNAKULAM, PIN-682 308., PIN - 682308 BY ADVS.
C.DILIP ANUSHKA VIJAYAKUMAR(K/835/2019) THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2022, ALONG WITH Tr.P(C).722/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) Nos.722 & 805 OF 2021 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE C.S.DIAS FRIDAY, THE 3RD DAY OF JUNE 2022 / 13TH JYAISHTA, 1944 TR.P(C) NO. 722 OF 2021 IN OP 2330/2021 OF FAMILY COURT,ERNAKULAM PETITIONER/S:
MARIA BABU AGED 28 YEARS D/O BABU A.P, AVALAKOTTIL HOUSE, THIRUVANIYOOR P.O.ERNAKULAM DISTRICT, PIN-682 308 BY ADVS.
C.DILIP ANUSHKA VIJAYAKUMAR RESPONDENT/S:
JERRIN JAMES, AGED 31 YEARS S/O JAMES K.V, KANNETH HOUSE, GANDHIPURAM, MARKET ROAD, TRIPUNITHURA P.O.ERNAKULAM, PIN-682 301, (PRESENTLY ABROAD) REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, MR JAMES K.V AGED 59 YEARS, S/O KK.VARGHESE, KANNETH HOUSE, GANDHIPURAM, MARKET ROAD, TRIPUNITHURA P.O.ERNAKULAM, PIN-682 301 BY ADVS.
PAUL MATHEW (PERUMPILLIL) M.DINESH THIS TRANSFER PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 03.06.2022, ALONG WITH Tr.P(C).805/2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: TR.P(C) Nos.722 & 805 OF 2021 3 COMMON ORDER As the transfer petitions are filed seeking transfer of the proceedings instituted by both the husband and wife, as against each other, they are being disposed of by this common order. The parties are, for the sake of convenience, referred to as per their status in Tr.P(C) No.722/2021.
2. The petitioner wife has filed Tr.P(C) No.722/2021 under Section 24 of the Code of Civil Procedure, seeking to transfer O.P.No.2330/2021 (Annexure-1) from the Family Court, Ernakulam to the Family Court, Muvattupuzha. The respondent husband has filed Tr.P(C) No.805/2021, seeking to transfer OP No.882/2021 (Annexure-3) from the Family Court, Muvattupuzha to the Family Court, Ernakulam.
3. The petitioner's case, in brief, in Tr.P(C) No.722/2021 is that; she is the wife of the respondent. TR.P(C) Nos.722 & 805 OF 2021 4 They have a two year old son born in their wedlock. Due to the estrangement between the couple, the respondent, who is employed abroad, has filed Annexure-1, seeking the permanent custody of their child. The petitioner has filed O.P.No.882/2021 (Annexure-3) before the Family Court, Muvattupuzha seeking a decree for declaration and other consequential reliefs. She has also filed M.C.No.121/2021 (Annexure-4) before the same court, seeking an order for maintenance for herself and the child. There is no person to chaperone the petitioner and the child from Thiruvaniyoor to Ernakulam to contest Annexure-1. The respondent has deserted the petitioner and his child and gone abroad. If the cases are transferred to the same court, they can be consolidated and jointly tried and it would save judicial time and be convenient for both parties. Hence, the transfer petition.
4. The respondent's case, in brief, in Tr.P(C) No.805/2021 is that; he has also instituted O.P. (Div) TR.P(C) Nos.722 & 805 OF 2021 5 No.3071/2021 before the Family Court, Ernakulam, seeking a decree for divorce. The petitioner has not sought for transfer of the said case. The distance between Thiruvaniyoor to Ernakulam is less than the distance from Ernakulam to Muvattupuzha. It would be convenient for the petitioner to contest the proceedings before the Family Court, Ernakulam. Hence, the transfer petition.
5. Heard; Sri.C.Dilip, the learned counsel appearing for the petitioner - wife and Sri.M. Dinesh, the learned counsel appearing for the respondent - husband.
6. It is on record that the petitioner - wife - has already instituted Annexures 3 and 4 before the Family Court, Muvattupuzha. Undisputedly, the respondent is employed abroad. He is prosecuting the proceedings through his power of attorney holder. Therefore, it is inconsequential, so far as the respondent is concerned, whether the cases are prosecuted before the Family Court, Ernkaulam or Muvattupuzha. It is trite, that the TR.P(C) Nos.722 & 805 OF 2021 6 convenience of the power of attorney, cannot override that of the parties to the 'lis'. The petitioner is residing in her parental home with a two year old child. Even though the distance from the petitioner's residence to the Family Court, Ernakulam may be less than the distance to Muvattupuzha, it would be difficult for her to travel from Thiruvaniyoor to Ernakulam, especially due to the heavy traffic congestion in the city. More over, the Family Court, Muvattupuzha is a lighter Court when compared to the Family Court, Ernakulam. Therefore, I am of the definite view that, it would be convenient for both parties, that all the cases be tried by the Family Court, Muvattupuzha. If all the cases are tried by the same court, they can be consolidated and jointly tried which would avoid conflict of decisions and save precious judicial time.
7. The law with respect to transfer of proceedings, particularly matrimonial disputes, is no longer res-integra, in view of the categoric declaration of law by the Hon'ble TR.P(C) Nos.722 & 805 OF 2021 7 Supreme Court in Sumitha Sing V. Kumar Sanjay and another [(2001)10 SCC 41)], Mona Aresh Goel V. Aresh Satya Goel [(2000) 9 SCC 255], Vaishali Shridhar Jagtap V. Shridhar Vishwanath Jagtap [AIR 2016 SC 3584] and Santhini V. Vijaya Venkatesh [2017 (4) KLT 415 (SC)]. The Hon'ble Supreme Court has held that it is the convenience of the woman and children that has to be looked into, while ordering the transfer of a case from one Court to another.
8. In the light of the rival contentions and the findings rendered above, the totality of the facts and circumstances and the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I dismiss Tr.P(C) No.805/2021 and allow Tr.P(C) No.722/2021 in exercise of the discretionary powers of this Court under Section 24 of the Code of Civil Procedure. In the result, Tr.P(C) No.805/2021 is dismissed and Tr.P(C) No.722/2021 is allowed, by ordering the transfer TR.P(C) Nos.722 & 805 OF 2021 8 of O.P.No.2330/2021 from the Family Court, Ernakulam to the Family Court, Muvattupuzha. The parties would be at liberty to move the Family Court, Muvattupuzha for consolidation and joint trial of all the cases between them. The Registry shall forward a copy of this judgment to the Family Court, Ernakulam with instructions to forthwith transmit the records in Annexure-1 to the Family Court, Muvattupuzha. The Family Court, Muvattupuzha shall, immediately on receipt of the records in O.P.No.2330/2021, call the case along with Annexures 2, 3 and 4.
sd/-
C.S.DIAS, JUDGE rkc/03.06.22 TR.P(C) Nos.722 & 805 OF 2021 9 APPENDIX OF TR.P(C) 722/2021 PETITIONER ANNEXURES Annexure 1 TRUE PHOTO COPY OF ORIGINAL PETITION IN OP NO 2330/2021 ON THE FILE OF FAMILY COURT, ERNAKULAM DATED 2.10.2021 Annexure 2 TRUE PHOTO COPY OF SUMMONS ISSUED BY THE FAMILY COURT, ERNAKULAM IN OP NO 2330/2021 DIRECTING PETITIONER TO APPEAR ON 13.12.2021 Annexure 3 TRUE PHOTO COPY OF PETITION IN OP NO 882/2021 DATED 15.11.2021 FILED BY THE PETITIONER BEFORE THE FAMILY COURT AT MUVATTUPUZHA Annexure 4 TRUE PHOTO COPY ORIGINAL PETITION IN MC NO 121/2021 DATED 15.11.2021 FILED BY THE PETITIONER BEFORE THE FAMILY COURT AT MUVATTUPUZHA TR.P(C) Nos.722 & 805 OF 2021 10 APPENDIX OF TR.P(C) 805/2021 PETITIONER'S ANNEXURES Annexure A1 TRUE COPY OF THE O.P.NO.2330/2021 DATED 2.10.2021 ON THE FILE OF FAMILY COURT ERNAKULAM.
Annexure A2 TRUE COPY OF THE O.P.NO.3071/2021 DATED 10.12.2021 ON THE FILE OF FAMILY COURT, ERNAKULAM.
Annexure A3 TRUE COPY OF THE O.P.NO.882/2021 DATED 15.10.2021 ON THE FILE OF FAMILY COURT MUVATTUPUZHA.
Annexure A4 TRUE COPY OF THE M.C.NO.121/2021 ON THE FILE OF FAMILY COURTTR.P(C) Nos.722 & 805 OF 2021 MUVATTUPUZHA. DATED 15.11.2021.